welcome to the september 19, 2012 meeting of the san francisco board of appeals. president chris fong sand commissioner funk. one seat on the board currently is vacant and pursuant to charter section 4.1060 the board may hold a meeting when there is a vacancy. in such instances -- four votes are not required to overrule a

departmental action to my left is deputy city attorney robert brian. at the controls is board legal assistant mr. pacheco. we're joined by representatives from the city departments that have cases before the board tonight. dan snyder, representing the planning department and planning commission. patrick o'reardon, senior building inspector, we have aliana crusho and janine young from the department of health and mr. harris from the police department. if you could go over the board meeting guidelines and conduct the swearing in process. >> turn off all phones and pagers. please carry on conversations in the hallway. the board's rules of presentations are as follows.

appellants, permit holders each have seven minutes to represent their cases and three minutes for rebuttals. people affiliated with these parties must include their comments within the seven or three minute periods. members of the public not affiliated with the parties have up to three minutes to address the board but no rebuttals. to assist in the accurate preparation of the minutes, people are asked to submit a speaker card or business card to board staff when you come up to the podium. speaker cards are available on the left side of the podium. the board welcomes your comments or suggestions. there are customer satisfaction survey forms. if you have suggestions about a rehearing, board rules, or hearing schedules, please speak to board staff during the meeting or tomorrow morning. it is located at 650 mission

street, room 304. this meeting is broadcast live on san francisco government television, sfgtv-cable 78 and dvds are available for purchase directly from sfgtv. if you intend to testify at any of tonight's hearings and wish the board to have your testimony weight, raise your right hand, swear i do after you've been sworn in or affirmed. any member may speak without taking the youth pursuant to their rights under the sunshine ordinance and the administrative code. thank you. >> do you solemnly swear or affirm the testimony you are about to give will be the truth, the whole truth and nothing but the truth. thank you.

>> thank you. we have one housekeeping item, this is in regards to item 9, the appeal concerns a certificate of appropriateness issued by the historic preservation commission for work at 401 van ness avenue. it requires four board members in decide of appeals of appropriateness. with only three members present we cannot hear this case and should continue it to a later date. my recommendation is to that we hear it at our next meeting which is october 102012 but we need a vote to move it. >> i vote to move the item 9 to october 10 based on the director's comments. >> thank you. is there any public comment? seeing none, then mr. pacheco, if you could call the roll. >> on that motion from the president to reschedule item 9-12-096 to october 10, vice president fung, aye.

commissioner lazarus, aye. >> thank you. the vote is 3-0. this matter is rescheduled to october 10. >> thank you. taking up item 1 which is public comment for items that are not on tonight's calendar is there anyone who wishes to speak under this item? seeing none, then item no. 2, which is commissioner comments and questions. commissioners. >> i'm sorry i made you wait for 10 minutes. i apologize. i had issues with parking. >> any public comment on this item? seeing none, then item no. 3. possible adoption and consideration of the board's meeting minutes. >> i move their adoption. is there any public comment on the minute? if you could call the roll please. >> on that motion from the president to adopt the september

19, 2012 minutes, vice president fung, aye. commissioner lazarus, aye. >> it is adopted. >> item 4(a). requested rehearing of 12-083, gallagher versus department of building inspection. at that time, the board voted 4-0-1, one vacancy, to deny appeal and withhold the permit on the basis that it is code compliant. the permit holder is park department and ada removal and -- of public restroom, new plumbing fixtures, new lights,

including ada pass, new retaining walls and new lights. and we'll start with the requester. ms. gallagher, you have three minutes. >> thank you. originally, this hearing was scheduled to take place a few weeks after i agreed to move the date, because i was promised that documents would be provided to me quickly. rather, two days prior to the hearing, mary hobson explained e-mailed that i could pick up documents at the rec park offices. the day before the hearing i obtained a cd with 124 new files on it. this long promised information should impact your decision because i believe you would not vote to condone uninspected, unsafe work in a park. you would not vote to allow two serious problems, at least that i learned from these documents, first that edward or teddy forsure the named resident

engineer on some of the inspections is not an engineer but a student. secondly that no one, not even today knows the scope of work under this permit. rec and park admits this in their brief here when it states the tennis courts part of this permit will be part of a different permit related to the harbor trellis. new information included in the six tenant approved plans for that permit. that permit was issued after the hearing and i later received the approved plans. this is now one of at least five permits, building permits for this project, not counting plumbing or anything like that. in the hearing we had previously scott sanchez testified on behalf of the zoning department that the paths at the summit would be retained and that they were not ada accessible. the new permit plans for the 610 show the scope of work is not

understood by mr. sanchez or maybe anyone at the planning department and ms. hobson's prior commitment to retain and obtain the paths at the summit is no longer true. in fact the 610 plans show that the new summit will have new site facilities, and as mr. sanchez points out in his e-mail to me those site facilities will not be ada accessible. this is a serious problem with this permit. so what information was now not provided to me, the mandatory archeological resource report that would need to be done in connection with the holiday house, i now know has not been done. instead there simply seems to be a plan to maintain just the footing of the holiday house. we're talking about such an important piece of san francisco history and we're talking about a mandatory planning department review that has not been done. this is simply not satifactory. there are so many more things i could point out because i did not have the information before.

i do hope that you'll uphold your positions and that you'll uphold your duties to allow at least a fair review of this information. thank you. >> just so i'm clear, you received information yesterday? >> no. the day before the initial hearing. i received an e-mail on august 20, and i picked up a cd on august 21. >> president hwang: did you request the hearing to be continued? >> i e-mailed ms. goldstein after i realized i was not getting the documents i was been promised. i had a meeting at supervisor farrell's office and was told my request in june would be met. >> president hwang: my question when you received information on august 21, the two days prior and the day prior to the actual hearing, did you request a continuance prior to the last hearing? >> no, ma'am. i spoke to ms. goldstein.

i didn't know at that time i could rerequest a rehearing. >> president hwang: not a rehearing to move it so you'd have more time to analyze the document before you, before our hearing. >> i had e-mailed her earlier when i was frustrated that i was not getting the document -- >> president hwang: after you got the documents. >> no. i did not. the hearing was the next day. >> president hwang: right. thank you. >> if we can hear from the permit holder now. >> good morning. i'm mary hobson, project manager for the recreation and parks department, representing the permit holder. i would like to state that, you know, we do not believe that any issues were raised in the appellant's request for rehearing. that was not originally

discussed in some form during our august 22nd hearing, and that these issues that have been raised -- had they been raised, would not have affected the outcome of that vote. i just wanted to go over the key points that were raised by ms. gallagher and give you a clarification of our response. the first being that the appellant argues that unpermitted work has been going on, on the site. i want to state that this is not true. we have not performed any unpermitted or suspended permitted work. this is supported by dbi inspectors. and this claim was misrepresented by ms. gallagher in her claim in that she credited special inspections to work, that should have been under a permit but those were in fact inspections of work that is cleared to proceed. second, arguments that were not performing special inspections,

her latest detail related to the qualifications of mr. forester, our resident engineer, mr. forester is not in fact performing special inspections, he is performing daily inspections. he is our on-site eyes. whenever a special inspection, as required under the building code, for life, safety, or building related structural issues, are either performed by our on-site certified structural engineer who stamps the drawings, or by a person who is certified through our material testing lab. she continues to argue about the pathways at the summit. this is actually work that is permit exempt. it was discussed at the first hearing. and, you know, we do intend -- i did want to say to do that pathwork, though it is not related to the permit that is under appeal today, we do want to assure that that path is

going to be maintained as part of the project, whether or not it appears in permit drawings, those pathways are for reference only, and that we do not take that extra step to update the plans if they do change for unpermitted work. and then her final claim about ada compliance, she doesn't provide any clear code issues to explain why she believes it's not to be compliant. as stated at the first hearing, we rely on our dpw, ada access coordinator who reviews the entire project for compliance and signs the documents. we have it on record that he signed it and we believe that that is supported. that concludes my three minutes. thank you. >> vice president fung: the primary point that the hearing requester is bringing up is that he had not received documents in a timely manner.

your brief indicates differently. you want to explain that timeline? >> well, in her request for rehearing, she references her original claims in june, request for documents in june. ms. gallagher first contacted us with a request for documents in june. we assembled the documents and made them available early, soon after, only within a week. we attempted to contact her multiple times to notify her that those drawings were available, that she should -- where she should go, and who she should contact to obtain copies of the documents she had requested. she did not take those steps to secure them until only a week -- less than a week before her original brief was due. she -- and the documents that she provided in her brief all

related to her request for those documents. we went to extraordinary steps to get those documents to her, waiving the requirement that we make copies and actually giving her our copies, because that would have reduced the time to reproduce it. we also had documents, that she requested messengered to her home. we have six sunshine requests from her affecting hundreds of pages of documents. we continued to make them available to her as soon as we could. and as fast a turn around as we could. the one that she requested and was given to her on august 22, i can only assume was something that she requested within the week prior, because we did our best to turn around and make everything we could available to her as quickly as possible. everything that she had requested prior to the hearing was made available.

prior to her brief was made available to her before her brief. all of the documentation regarding, you know, our attempts to contact her, his when documents were available, was included in my response, as an exhibit. >> president hwang: thank you. mr. snyder. >> good evening. dan snyder with the planning department. our feeling, commissioners, is that there is no new information at all in this matter, much less information that will be suggestive of a rehearing. the appellant does ask the board to revisit what appear to be five separate issues. what i'd like to do is run through those quickly and i'll sit back down again. the first issue is that the

appellant continues to allege that the -- work for this permit was not clearly defined. in fact, the scope remains exactly as it has since prior to your august hearing. this fact is acknowledged on i believe page 2 of the appellant's brief. secondly the appellant alleges there is new work on the site without permit. this allegation appears to stem from a potential misunderstanding, again of information available prior to your august hearing. even if this wasn't the case, work without permit would be subject to a separate code enforcement matter that would be aside from this permit and this appeal. thirdly, the appellant alleges that there have been improper inspections. here too, even if there were the case and we understand from colleagues from dbi that it is not, the appropriate remedy would have been to stop the work and obtain those permits rather than to rehear the matter.

fourthly, the appellant alleges that work at the summit may impact possible historic resources. the project won't have any such impact, mainly because work is not proposed at the summit. this was stated by rec park staff and planning staff both at the august hearing and before that hearing -- and those statements were acknowledged by the appellant in her brief and a minute ago at this hearing. lastly the appellant alleges that parts of the project are not appropriatel appropriately . if this were true, according to our colleagues we understand it is not, this information was available well in advance of the august hearing. on balance, commissioners, there is no new information here, and as such we would respectfully submit to you that the appellant has not met your threshold for the granting of a rehearing request.

commissioners, i do thank you for your time and we're happy to answer any questions. >> president hwang: could you hit that fourth point again. >> the allegation as we understand it from the appellant is that there has been -- or there is proposed work at the summit that may impact historical or archeological resources, potential resources. we are of the position that there could be no such impact because no work is proposed at the summit. >> okay. thank you. >> president hwang: thank you. mr. reardon. >> good evening, commissioners. patrick o'reardon, dbi. i believe there are multiple layers of review, inspection -- and inspection involved with this work. and i really think that it's everyone's intent to deliver a code-compliant project here.

since the last meeting regarding this matter, six special inspections have been applied to this permit, as would be required for the structural elements involved with the work. so that is another level of a review, and verification for the structural work having to do with what was proposed under this permit. the accessibility features, they were reviewed by kevin jenson, who is city staff with dpw. he is a specialist -- he is going to do the inspections regarding the accessibility along with dbi. again, we intend to ensure that we have compliance with the requirements of ada, and accessibility for this park. senior inspector duffy who spoke to you at the last meeting regarding this matter was at the site last thursday to investigate a complaint

regarding possible work at the tennis court area. he was unable to see any work being done in the tennis court area, except for storage of materials. so that complaint was based on not having merit. now, the construction that is going on, supposedly right now, is, as i understand it, is a bench seat that is less than four feet, and wouldn't require a permit in the first place, let alone inspection. so in reading the brief i'm not seeing anything new above and beyond what we heard at our last meeting. i'm available for any questions. >> president hwang: thank you. >> is there any public comment on this item? three minutes. >> good evening, commissioners.

my name is stefan franz a sitting member of the open spaces advisory committee, a member of the friends of lafayette park board and stakeholder in lafayette park. i won't take up much of your time tonight because i testified at the august 22nd hearing. i want to reiterate that the community at large feels strongly and sides with rec park, that the work needs to just continue, that ms. gallagher's opposition is understood, is accepted, but that, at this point, clearly she has made up her mind that she will see this through. we would ask that you not grant a rehearing. we do not hear any new or updated information that should affect your decision. and we would just ask that we get this project back on track. thank you.

>> ken bruce.>> president hwang. >> next speaker. >> hi there. kathy sierl and i presented at the last meeting. we definitely made progress since last time that i was here. i stopped by dbi yesterday and there are in fact six special inspections that are on file now so we did make some progress. good. however, in referring to the documents that shannon gallagher referred to that we got on august 20, we looked through those and find that there are still some things that are slipping through the cracks that i want to bring to your attention. the items that i'm going to talk about are on the 820 disc and they include daily reports that we first received on 8/20 and hadn't seen before along with an inspection log. we hadn't seen any inspection log prior to august 26 when we i picked up the cd. i want to show you the

inspection log and there are a couple of items i highlighted in yellow. first is this northern bench where you can see has a failure score for its foundation, for the soil that was tested. how did they respond to that. on the august 13 daily report, they ripped it out. they identified that there was a problem with the foundation. they ripped it out. after that, on the next day, the august 14th report, they fixed it. they started recompacting the soil because the soil had failed and looks like they're going to do a good job on this item. however that's not the case with one of the other items. going back to the inspection log, you'll see that there was a north play ground seat well, with multiple failures. two days later, teddy -- sorry, we'dward forester inspected the

rebar. two days later he inspected and passed it. what happened after that. on july 29, he was made aware, in his daily report that he wrote, that there was a failure, written down here at the bottom. it's too small to read and i couldn't -- because i figured it wouldn't look good but he is aware that there was failure and work continued on the seat well, which is quite large. work continued on august 8. i have seen no eched efsdz evidt this has been taken care of so we are developing a rather large seat well area on soil that failed. i hope this is an example and one that would grant us a rehearing. thank you. >> president hwang: next speaker please. >> hi. my name is caree careena careen.

i want to point out that rec and park has reached out to our community really well from the very beginning and before we had our first community meeting to make sure all the community was heard. and i think they've responded to everyone's complaints and concerns in a really timely and respectful manner. not that everyone got their way, but this has come up at the 12th hour. and i just want you guys to know that the city has really done a good job on this. thanks. >> thank you. >> president hwang: next speaker please. >> good evening, commissioners. i'm lynn newhouse seigel,

friends of the lafayette park and we are not aware of any -- we came today to hear this appeal, or this request for rehearing. we are not aware of any new information that's come up since the last hearing. we had a large group of people that testified on both sides at the last hearing. you heard the friends of lafayette park and the neighborhood really wants -- we're looking at the big picture. the plans are the result of a lot of community outreach, community meetings. not everybody got their way, but at this point, we want it to go forward. and we're told that our beautiful park is not going to open until possibly next july, instead of next may, because of all this delay. so we would like to see everything go forward. thank you. >> president hwang: thank you. >> next speaker please.

>> -- commissioners. my name is -- and i live across the street from this park, and i am an engineer. >> would you mind speaking into the microphone. it's hard to hear you. >> i live across the park. and i watching all this construction site. and i am an engineer too. i look at the building plans for the park, the soil tests, and the resident engineer reports. ms. gallagher -- my opinion about -- soil. of course -- the foundation -- of soil -- not acceptable. and the -- solution there just to do the work. but it appears there is like -- from the resident engineer reports, no work was redone. instead, they simply ripped out the structure and poured new concrete.